which the respondent has incorporated in the AMC bus. Although the AMC bus is wider than the Sprinter vehicle it
retains the shape or configuration of the Sprinter cab and the wheel design.
This is not fortuitous. According to the undisputed evidence of Peter Koopman who is an expert on the technical
aspects of the Sprinter vehicles the AMC bus is made up of Sprinter parts or replicas of them. This applies
particularly to the frontend design and shape of the bonnet, the front fenders and the wraparound headlights. He
states unequivocally that the frontend of the AMC vehicle appears not to have been modified. Koopman also refers
to the side of the vehicles and the design of the bus wheels with their relatively small diameters and low profile
tyres. The respondent also pertinently admits having used Sprinter side panels in the construction of the bus and
does not allege that these panels have been modified in any way or attempt to show how they would affect the
appearance of the vehicle. As pointed out by the applicants in their replying affidavits with reference to a line
drawing of the side view of a Sprinter vehicle, the side panel defines and comprises a substantial proportion of the
external shape profile and getup of Sprinter vehicles. This applies particularly to the cab. When the photographs of
the AMC bus (Annexure AMC 18 volume 2 pages 372 to 375) are compared with the photographs of the Sprinter
vehicle which has been converted into a bus (Annexure MB11 volume 1 pages 86 to 89) the similarity if not
substantial identity of the frontend of the bus, ie the cab, and the wheel design is selfevident. If permitted to use
these features the respondent will be able to represent to the relevant market that the AMC bus is associated or
connected with the Sprinter vehicle.
Although the respondent applies its trade mark AMC and the words "AMC People Mover" to the bus this will not
prevent deception or confusion arising especially where the vehicles are seen at a distance. According to Mr Nicholls
the AMC bus will not be confused with the Mercedes Benz Sprinter because once a person is within 30 metres of the
AMC bus, they will be able to read the AMC logo and the words "AMC People Mover". Even when these features
become legible it is not clear that the people and the market will appreciate immediately that the vehicle is made by
a different manufacturer from the Sprinter. It is by no means clear that the AMC trade mark is wellknown and
immediately recognisable in the relevant market. The Mercedes Benz name and trade marks clearly are. In my view
the AMC bus would be perceived to be another horse from the same stable. See Hollywood Curl (Pty) Limited and
another v Twins Products (Pty) Limited (supra) at 251G.
The applicants are therefore entitled to relief on the grounds of passingoff. The relief will be granted in terms of
the appropriate alternative prayer modified slightly by me to properly define what is prohibited.
Page 230 of [2001] 2 All SA 219 (T)
CommonLaw Unlawful Competition
The general principles of the law relating to unlawful competition were settled in Schultz v Butt 1986 (3) SA 667 (A)
at 678A to 679F. These principles may be summarised as follows.
(1) As a general rule, every person is entitled freely to carry on his trade or business in competition with his
rivals. However, such competition must remain within lawful bounds. If it involves a wrongful interference with
another's rights as a trader, it will be unlawful and will constitute an injury for which the Aquilian action will lie
if it directly results in loss.
(2) In order to succeed in an action based on unlawful competition, the plaintiff must establish all the requisites
of Aquilian liability, including proof that the defendant has committed an unlawful act.
(3) Unlawful acts are not limited to acts which fall into a category of clearly recognised illegality, such as trading
in contravention of an express statutory prohibition; the making of fraudulent misrepresentations by a rival
trader as to his own goods; the passingoff by a rival trader of his goods or business as being that of his
competitor; the publication by a rival trader of injurious falsehoods concerning his competitor's business; and
the employment of physical assaults and intimidation designed to prevent a competitor from pursuing his
trade.
(4) The lawfulness or unlawfulness of an act of competition may be determined by the application of certain
criteria which include fairness and honesty in competition (which requires that regard be had to boni mores
and the general sense of justice in the community) and questions of public policy which may be of importance
in a particular case, such as the importance of the free market and of competition in our economic system.
Since the applicants seek an interdict in the present case they need only establish that the respondent is acting
unlawfully visávis them. See Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Limited (1) 1988 (2) SA 350 (W) at 355E
H; Pepsico Inc and others v United Tobacco Co Limited 1988 (2) SA 334 (W) at 337H338A, Long John International
Limited v Stellenbosch Wine Trust (Pty) Limited and others 1990 (4) SA 136 (D) at 143GI.
In the present case the respondent concedes that it has made use of Mercedes Benz Sprinter parts, including
body parts, to create its AMC bus. The result is a Sprinter lookalike vehicle particularly with regard to the front
portion or cab and the wheel design. The close similarity between the Mercedes Benz Sprinter and the AMC bus was
noted immediately by the various experts who saw the AMC bus at the Kyalami Exhibition. The applicants obviously
spent time and money on designing their Sprinter vehicle and they have obviously spent time and money in
developing the market for the vehicle. Part of the vehicle's appeal lies in the shape or configuration of the vehicle.
Although he talks vaguely about the design and other criteria which the respondent was obliged to meet the
respondent's deponent Mr Nicholls furnishes no detail at all about how the respondent designed the exterior of
their AMC bus. With regard to the sloping front design of the bus ie the cab section, he contends that this is used
by most manufacturers of vehicles within this category and is the result of wind tunnel evaluations of the drag
coefficient. He also alleges that modern computerised evaluation processes have led to the fundamental designs of
vehicles being almost identical and that for this type of vehicle there is only one shape which
Page 231 of [2001] 2 All SA 219 (T)